Present: Carrico, C.J., Compton, Stephenson, 1 Hassell, Keenan,
and Koontz, JJ., and Poff, Senior Justice
SHARI G. PAVLICK, ADM'X, ETC.
OPINION BY
v. Record No. 962474 CHIEF JUSTICE HARRY L. CARRICO
September 12, 1997
THOMAS MATTHEW PAVLICK, JR.
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge
The question for decision in this appeal is whether the
doctrine of intra-family immunity bars recovery of damages for
the death of an unemancipated child as a result of a parent's
negligent or intentional act. The question stems from a motion
for judgment filed by Shari G. Pavlick, Administratrix of the
Estate of Justin Robert Pavlick, deceased, against the defendant,
Thomas Matthew Pavlick, Jr., seeking damages for the wrongful
death of the deceased, the infant son of Shari Pavlick and the
defendant.
The defendant filed a plea to the motion for judgment
asserting that he was "immune from suit under the doctrine of
intra-family immunity." The trial court sustained the plea and
dismissed the plaintiff's motion for judgment. We awarded the
plaintiff an appeal.
Justin was born June 24, 1994. He died August 18, 1994,
when less than two months old, allegedly from injuries sustained
while in the care and custody of the defendant. In her two-count
motion for judgment, the plaintiff alleged that Justin died as a
1
Justice Stephenson participated in the hearing and
decision of this case prior to the effective date of his
retirement on July 1, 1997.
result of the defendant's negligence or, alternatively, that the
death resulted from the defendant's intentional act. 2
In sustaining the plea of immunity, the trial judge noted
that there is no Virginia precedent "supporting a denial of the
plea." The plaintiff responds on appeal with a request that we
abrogate the rule of intra-family immunity completely or,
alternatively, that we recognize an exception to the rule
allowing recovery for the death of a child resulting from the
intentional act of a parent.
Citing numerous out-of-state cases, the plaintiff says that
"[c]ourts in the majority of states which have considered the
matter in recent years have found that the doctrine of intra-
family immunity can not be justified and have abolished parental
tort immunity." 3 In abolishing parental immunity, the plaintiff
states, courts have rejected the several factors that prompted
adoption of intra-family immunity in the first place, viz., "(1)
the wish for domestic peace and tranquility; (2) the desire to
2
The defendant states on brief that he has been convicted of
second-degree murder as a result of Justin's death and is serving
time in the penitentiary.
3
Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Streenz v.
Streenz, 471 P.2d 282 (Ariz. 1970); Gibson v. Gibson, 479 P.2d
648 (Cal. 1971); Schenk v. Schenk, 241 N.E.2d 12 (Ill. App. Ct.
1968); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1971); Anderson v.
Stream, 295 N.W.2d 595 (Minn. 1980); Silesky v. Kelman, 161
N.W.2d 631 (Minn. 1968); Hartman v. Hartman, 821 S.W.2d 852 (Mo.
1991); Briere v. Briere, 224 A.2d 588 (N.H. 1966); France v.
A.P.A. Transp. Corp., 267 A.2d 490 (N.J. 1970); Guess v. Gulf
Ins. Co., 627 P.2d 869 (N.M. 1981); Gelbman v. Gelbman, 245
N.E.2d 192 (N.Y. 1969); Nuelle v. Wells, 154 N.W.2d 364 (N.D.
1967); Kirchner v. Crystal, 474 N.E.2d 275 (Ohio 1984); Winn v.
Gilroy, 681 P.2d 776 (Or. 1984); Falco v. Pados, 282 A.2d 351
(Pa. 1971); Goller v. White, 122 N.W.2d 193 (Wis. 1963).
allow the parent to discipline and control the child; (3) the
wish not to allow family resources to be depleted; [and] (4) the
wish to avoid possible fraud or collusion." Quoting Kirchner v.
Crystal, 474 N.E.2d 275 (Ohio 1984), the plaintiff asserts that
"these rationalizations [are] outdated, highly questionable and
unpersuasive." Id. at 276.
With respect to injuries caused by the intentional acts of a
parent, the plaintiff says that "[v]irtually every reported case
that has considered [the issue] has held that the bar of intra-
4
family immunity should not apply to such [acts]." In so
holding, the plaintiff states, courts "have recognized that to
permit a child to maintain a suit against a parent [for injuries]
resulting from an intentional or willful tort is no more
disruptive to the family peace and tranquility than depriving the
child of the right to bring such a suit."
The defendant argues, on the other hand, that "[t]he
doctrine of intra-family/parental immunity is alive and well in
Virginia." There are no cases in Virginia, the defendant states,
"which allow suit by a deceased unemancipated child's estate
against [a] living parent [for the parent's allegedly negligent
4
Brunner v. Hutchinson Div., Lear-Siegler, Inc., 770 F.Supp.
517 (D.S.D. 1991); Hurst v. Capitell, 539 So.2d 264 (Ala. 1989);
Attwood v. Attwood, 633 S.W.2d 366 (Ark. 1982); Emery v. Emery,
289 P.2d 218 (Cal. 1955); Schlessinger v. Schlessinger, 796 P.2d
1385 (Colo. 1990); Wright v. Wright, 70 S.E.2d 152 (Ga. Ct.App.
1952); Nudd v. Matsoukas, 131 N.E.2d 525 (Ill. 1956); Barnes v.
Barnes, 603 N.E.2d 1337 (Ind. 1992); Mahnke v. Moore, 77 A.2d 923
(Md. 1951); Doe v. Holt, 418 S.E.2d 511 (N.C. 1992); Cowgill v.
Boock, 218 P.2d 445 (Or. 1950); Jenkins v. Snohomish County Pub.
Util., 713 P.2d 79 (Wash. 1986); Courtney v. Courtney, 413 S.E.2d
418 (W.Va. 1991).
or intentional acts,] given the instant circumstances." The
defendant asserts that while there are several exceptions to the
doctrine in Virginia, none is applicable here.
The considerations prompting the initial adoption of intra-
family immunity are still viable, the defendant maintains,
especially when, as here, the family includes another child of
the parents' marriage. The defendant submits that "[t]o allow
one child's cause of action to take assets of the family required
to support the entire family unit is certainly cause for
disharmony in the family unit, even where the parent responsible
for the egregious conduct is no longer an integral part of that
unit."
Quoting from Hewellette v. George, 9 So. 885 (Miss. 1891), 5
the defendant maintains that "[t]he state, through its criminal
laws, will give the minor child protection from parental violence
and wrong-doing, and this is all the child can be heard to
demand." Id. at 887. This is sufficient reason, the defendant
submits, to forbid a minor child from asserting a civil claim to
redress personal injuries suffered at the hands of a parent.
Other courts have followed this rationale, the defendant states,
"and to this date the majority of states have not completely
6
abrogated the [intra-family immunity] Rule."
5
In the official Mississippi reporter, 68 Miss. 703, the
case is styled Hewlett v. George.
6
In Glaskox v. Glaskox, 614 So.2d 906, 912 (Miss. 1992),
Hewellette was overruled but only with respect to injuries
suffered by a child in an automobile accident resulting from the
negligence of a parent.
Finally, the defendant asserts that there is a strong public
policy in Virginia against the complete abrogation of the rule.
Accordingly, the defendant concludes, we should refrain from
abrogating the rule in the interest of maintaining "parental
discipline and control and family harmony."
This Court first considered the doctrine of intra-family
immunity in Norfolk Southern R.R. v. Gretakis, 162 Va. 597, 174
S.E. 841 (1934). There, Gretakis's infant daughter was injured
as the result of the concurring negligence of her father and a
railroad company. The daughter recovered judgment against the
railroad company, and the latter sought contribution from the
father, who demurred on the ground that "an infant daughter
cannot sue her parent and there can be no contribution." Id. at
599, 174 S.E. at 842. The trial court sustained the demurrer.
We affirmed, stating that "[a]ccording to the great weight of
authority an unemancipated minor child cannot sue his or her
parent to recover for personal injuries resulting from an
ordinary act of negligence." Id. at 600, 174 S.E. at 842.
We soon recognized an exception to the intra-family immunity
rule. In Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939), a
father owned and operated a bus company as a common carrier, and
his daughter was injured while a passenger on one of his buses.
She recovered a judgment against him for her injuries, and he
sought reversal in this Court on the ground that the daughter,
"being an unemancipated minor, could not recover against her
father." Id. at 15, 4 S.E.2d at 344. We affirmed, holding that
the doctrine of intra-family immunity did not bar the daughter's
recovery because "the action was brought against the father, in
his vocational capacity, as a common carrier, not against the
father for the violation of a moral or parental obligation, in
the exercise of his parental authority." Id. at 27, 4 S.E.2d at
349.
We next considered the intra-family immunity rule in
Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170 (1953),
involving an action brought by an infant against her father for
injuries allegedly resulting from his gross negligence. We noted
that "[i]t is well settled . . . that an emancipated infant may
maintain a tort action against a parent." Id. at 580, 74 S.E.2d
at 173. We held, however, that because the infant in Brumfield
was unemancipated, she was precluded from maintaining the action
against her father under the rule announced in Gretakis, supra.
We said in Brumfield it made no difference in that gross
negligence was alleged as the basis for recovery. 194 Va. at
583, 74 S.E.2d at 174.
Later, in Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190
(1971), this Court abrogated the intra-family immunity rule with
respect to "an action by [a] child against [a] parent to recover
for injuries sustained in a motor vehicle accident." Id. at 186,
183 S.E.2d at 194. The rationale for our decision was that
"[t]he very high incidence of liability insurance covering
Virginia-based motor vehicles . . . has made our rule of parental
immunity anachronistic when applied to automobile accident
litigation [and] the rule can be no longer supported as generally
calculated to promote the peace and tranquility of the home and
the advantageous disposal of the parents' exchequer." Id. at
185, 183 S.E.2d at 194.
Finally, in Wright v. Wright, 213 Va. 177, 191 S.E.2d 223
(1972), we considered the question whether an unemancipated child
could maintain an action for the simple negligence of her father
in failing to provide a safe place for her to play in the yard of
the family home. We answered the question in the negative
because the injury was not "sustained in [a] motor vehicle
accident[]" and "the alleged negligence was incident to the
parental relationship of the father with his unemancipated child,
and not to a business or vocational relationship." Id. at 179,
191 S.E.2d at 225.
This examination of our prior decisions on the rule of
intra-family immunity establishes two propositions. First, the
rule is "alive and well in Virginia," as the defendant maintains,
at least to the extent it still bars recovery by an unemancipated
child against a parent for negligence in a non-automobile or non-
business related situation. See Gretakis, Brumfield, and Wright.
Second, as the plaintiff observes on brief, "[n]o Virginia case
has ever held that the bar of intra-family immunity applies to
intentional, wilful, or malicious torts."
This brings us to the question whether we should abrogate
the rule of intra-family immunity completely, as the plaintiff
requests, refuse to alter the rule in any way, as the defendant
urges, or recognize an exception to the rule to allow recovery
for injuries to an unemancipated child resulting from the
intentional act of a parent, as the plaintiff asks alternatively.
In order to abrogate the rule completely, we would be
required to overrule Gretakis, Brumfield, and Wright. Yet, those
decisions were accepted as correct when made, they have been
relied upon since by the bench, the bar, and the public, and
nothing has occurred, such as the advent of "[t]he very high
incidence of liability insurance covering Virginia-based motor
vehicles," noted in Smith, 212 Va. at 185, 183 S.E.2d at 194, to
make the rule "anachronistic" when applied to non-automobile,
non-business litigation. Id.
Furthermore, we are not satisfied that the considerations
which prompted the adoption of the intra-family immunity rule in
the first place have become "outdated, highly questionable and
unpersuasive" 7 in all instances. When applied in negligence
cases similar to Gretakis, Brumfield, and Wright, the rule may
still work to maintain peace and tranquility within the family
unit.
The "doctrine of stare decisis is more than a mere cliche"
in Virginia; it "plays a significant role in the orderly
administration of justice by assuring consistent, predictable,
and balanced application of legal principles." Selected Risks
Ins. Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581 (1987).
Giving the doctrine full effect, we decline to overrule Gretakis,
Brumfield, and Wright, and we deny the plaintiff's request to
abrogate the rule of intra-family immunity completely.
We are not inclined, however, to respond favorably to the
7
Kirchner v. Crystal, 474 N.E.2d 275, 276 (Ohio 1984).
defendant's urging that we refuse to alter the rule in any way.
Rather, we think the proper course is to recognize an exception
to the rule of intra-family immunity when, as alleged here, a
child's death results from the intentional act of a parent.
As noted supra, no Virginia case has ever applied the rule
of intra-family immunity to an intentional tort committed by a
parent against a child. Therefore, to recognize an exception
with respect to an intentional tort by a parent resulting in the
death of a child would neither disturb established precedent nor
offend principles of stare decisis.
Furthermore, such an exception would be supported by logic
and common sense. The factors which prompted adoption of intra-
family immunity in the first place are totally irrelevant when
considered in the context of the death of a child caused by the
intentional act of a parent. Indeed, such an act defeats the
very purpose of the immunity rule. Paraphrasing the opinion of
the Supreme Court of Oregon in Cowgill v. Boock, 218 P.2d 445
(Or. 1950), it is absurd to talk about maintaining the peace and
tranquility of the home when it has already been disrupted by
such a monstrous crime as the murder of a child by a parent. Id.
at 450. Or, paraphrasing the opinion of the Court of Appeals of
Maryland in Mahnke v. Moore, 77 A.2d 923 (Md. 1951), there can be
no basis for the contention that a suit against a father for the
murder of his child would be contrary to public policy, for the
simple reason that there is no home at all in which discipline
and tranquility are to be preserved. Id. at 926.
Finally, we do not overlook the defendant's argument based
upon Hewellette v. George, supra, that "[t]he state, through its
criminal laws, will give the minor child protection from parental
violence and wrong-doing, and this is all the child can be heard
to demand." However, while enforcement of the criminal laws may
serve the public interest in protecting children from parental
violence, such enforcement does not serve to redress the loss
suffered by the survivors of a child whose death results from the
intentional act of a parent. They have the right to demand more.
Furthermore, to allow recovery against the parent here may also
serve as a deterrent against similar conduct by other parents.
For these reasons, we refuse to abrogate the rule of intra-
family immunity completely. Accordingly, we will affirm the
trial court's judgment to the extent it sustained the plea of
intra-family immunity with respect to the defendant's alleged
negligence. However, we will reverse the judgment to the extent
it failed to recognize an exception to the rule of intra-family
immunity that would have allowed recovery against the defendant
for the death of his unemancipated child as a result of his
allegedly intentional act, and we will remand the case for
further proceedings consistent with the views expressed in this
opinion.
Affirmed in part,
reversed in part,
and remanded.